Saturday, December 31, 2011

I've got to strongly disagree with Kevin Drum on this one. Drum says that minority obstruction powers in the U.S. Senate, allowing one senator to hold up legislative business, are the equivalent of nullification, the early-19th century theory that a state could negate a law imposed by the federal government. In the case that Drum cites, the outcomes are roughly similar. That is, a Republican senator is refusing to allow the appointment of an Obama administration nominee, essentially shutting down the oversight board to which the nominee was appointed. Yes, this has roughly the same effect as preventing the federal government from enforcing a duly passed law. But the means are very, very different, and that matters.

The filibuster, construed as any form of minority obstruction in the Senate, is legal, subject only to the rules of the Senate, which the Senate may determine for itself. Nullification runs flatly against the supremacy clause of the U.S. Constitution. Just because the outcomes may be the same doesn't make them equivalent. The assassination of federal officers would similarly obstruct the enforcement of federal laws, but that doesn't make it the same thing as filibustering appointees.

(sorry, I've never taken the time to learn to correctly post a link in blogger's comment section)

It seems to me Republican Senators are doing this because they know they can't undermine regulatory boards like the NLRB through the old fashioned way - legislation. And since they won't vote give the president an up or down vote in the Senate, they've forced President Obama's hand in making recess appointments.

I agree that both nullification and what the Republicans are doing now is wrong, but to say that nullification runs "flatly" against the Constitution is to read our current understanding back into history. The original Nullifiers correctly cited no less an authority for their position than James Madison, "the Father of the Constitution," who had argued in his "Report on the Virginia Resolutions" that the Constitution not only permitted but demanded that states "interpose" themselves to nullify unconstitutional laws. A key reason there was eventually a Civil War is that the Founding had settled almost nothing "flatly," but instead had achieved (temporary and unstable) agreement by muddling certain issues, like the relationship of the states to the federal government.